17 Accord Park Drive, Suite 106, Norwell MA 02061


Following up on the Article which appeared in the January, 2014 issue of REBA News, this Article will address two (2) additional pitfalls for the conveyancer and for title examiners.  As always, please feel free to get back to me with any comments you might have regarding these issues.


The case of HSBC Bank USA, National Association v. Stephen Galebach and Others, 2012 Mass.App.Div. 155 considered the adequacy of an Affidavit of Sale under G.L. c. 244, §15 in the context of the summary process action.

In its Decision, the Court noted “In a Summary Process Action for Possession after Foreclosure by Sale, the Plaintiff is required to make a Prima Facie showing that it obtained the Deeds to the property at issue and that the Deed and Affidavit of Sale, showing compliance with the statutory foreclosure requirements, were recorded.”  See Lewis v. Jackson, 165 Mass. 481, 486-487 (1896).

In this case, the Foreclosure Affidavit notes therein as follows:

“2.  Central Mortgage Company, by and through its attorneys, caused a notice, of which the following is a true copy, to be published on November 25, 2010, December 2, 2012 and December 9, 2012, in the Medford Transcript, a newspaper having a general circulation in Medford.  (See attached Exhibit A)

3.  Central Mortgage Company, by and through its attorneys, also complied with Chapter 244, Section 14 of the Massachusetts General Laws, as amended, by ailing the required notices certified mail, return receipt requested.”

The Court notes that the Affiant did not cause the Notice to be published and make the mailings necessary to comply with Chapter 244, §14 of Massachusetts General Laws.

The statutory form for a Foreclosure Affidavit set out as Form 12 of the Appendix to G.L. c. 183 requires that the Affiant describe his or her acts in the first person.

It is imperative that an attorney preparing an Affidavit of Sale or reviewing one as part of a transaction be certain that the Affidavit complies with the requirement of the Statute.  Not only must the Affidavit include a jurat, but also must be drafted so that the Affiant shows personal knowledge.



Following the case of In re Traverse, 485 B.R. 815 (2013), the case of In re Woodman, 2013 WL 4498927 is a further example of the harsh results of the failure to properly record or file a mortgage.

In the Traverse case, a refinanced mortgage went unrecorded and therefore unperfected leaving the lender, JPMorgan Chase, unsecured.

In the Woodman case, both the first and second mortgages were improperly recorded rather than filed on the registered land side in Essex County.  The Judge allowed the mortgages to be avoided by the Bankruptcy Trustee citing M.G.L. c. 185, §57 which provides:

“An owner of registered land may convey, mortgage, lease, charge or otherwise deal with it as fully as if it had not been registered.  He may use forms of deeds, mortgages, leases or other voluntary instruments, like those now in use, sufficient in law for the purpose intended.  But no deed, mortgage or other voluntary instrument, except a will and a lease for a term not exceeding seven years, purporting to convey or affect registered land, shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties, and as evidence of authority to the recorder or assistant recorder to make registration.  The act of registration only shall be the operative act to convey or affect the land, and in all cases the registration shall be made in the office of the assistant recorder for the district or districts where the land lies.”

and M.G.L. c. 185, §46 which further provides:

“Every plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate, and any of the following encumbrances which may be existing . . .”

The Court concludes “. . . the Woodmans’ Certificate of Title makes absolutely no reference to either the Citi or Nationstar Mortgage.  Nothing on the Certificate of Title would prompt a purchaser to search for these mortgages anywhere, and accordingly the Trustee had no constructive notice of them.”